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26 So. 1020
49 L.R.A. 548, 41 Fla. 463, 26 So. 1020, 79 Am.St.Rep. 195
(Cite as: 49 L.R.A. 548, 41 Fla. 463, 26 So. 1020)

Supreme Court of Florida.

STATE ex rel. PEREZ et al.
v.
WALL, Judge.
Nov. 7, 1899.
Application by the state of Florida, on the relation
of Rita Perez and others, for a writ of mandamus to
Joseph B. Wall, judge of the Sixth judicial circuit.
Denied.
West Headnotes
Judges 227

45

227 Judges
227IV Disqualification to Act
227k45 k. Relationship to Party or Person Interested. Most Cited Cases
Under F.S.A. 314.10, providing that a judge shall
not preside in any cause in which he would be excluded from being a juror by reason of interest, or
consanguinity or affinity to either of the parties, a
judge is disqualified to sit in a case in which the
husband of his wife's niece is an interested party.
Syllabus by the Court
Under section 967, Rev. St., husbands of an aunt
and niece are so related to each other by affinity as
to disqualify the one from sitting as judge in a case
in which the other is an interested party.
*463 **1020 Gunby & Gibbons and C. C. Whitaker, for relators.
Sparkman & Carter, for respondent.
MABRY, J.
This is a proceeding by mandamus to compel the
Hon. Joseph B. Wall, judge of the Sixth judicial circuit, to take cognizance of and determine a certain
cause pending in Hillsboro county, in said circuit,

Page 1

wherein Solon B. Turman is complainant, and Rita

Perez et al. are defendants, and in which it is made
to appear that said judge has refused to act on the
ground that he is disqualified.
The ground of disqualification relied on by the
judge in his answer is that his wife and the father of
the wife of complainant, Solon B. Turman, were
brother and sister of the full blood, and that his (the
judge's) wife and the wife of Solon B. Turman were
still living. The question is whether the husbands of
an aunt and niece of the full blood are so related to
each other as to disqualify*464 the one from sitting
as judge in a case in which the other is an interested
party.
Our statute provides that no judge of any court
shall sit or preside in any cause to which he is a
party or in which he is interested, or in which he
would be excluded from being a juror by reason of
interest, consanguinity or affinity to either of the
parties; **1021 nor shall he entertain any motion in
the cause other than to have the same tried by a
qualified tribunal. Rev. St. 967.
It has been correctly stated that the common law
was watchful over the purity of the jury trial, and,
to secure the fair administration of justice, guarded
against the influence of those passions most likely
to pervert the judgment of men in deciding upon the
conduct and controversies of their fellow men.
Jaques v. Com., 10 Grat. 690. Challenges were allowed to the polls in capita, which were exceptions
to particular jurors, and they were also either principal or to the favor. A third ground of challenge
to the polls is propter affectum,-as that a juryman is
of kin to either party within the ninth degree. 2
Tidd, Prac. 853. And this was a principal challenge.
The venire facias commanded the sheriff to summon 12 good and lawful men of the body of the
county, qualified according to law, by whom the
truth of the matter might be the better known, and
who were in no wise of kin to either party, to make
the jury. Id. 778. Under this writ, relations by affin-

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Page 3 of 4

26 So. 1020
49 L.R.A. 548, 41 Fla. 463, 26 So. 1020, 79 Am.St.Rep. 195
(Cite as: 49 L.R.A. 548, 41 Fla. 463, 26 So. 1020)
ity were excluded from the jury. As Lord Coke
says, affinity, in one sense, is taken for
consanguinity or kindred,-as in the writ of
venire facias; that affinity is a principal challenge
of a juror, and equivalent to consanguinity, when it
is between either of the parties,-as if the plaintiff or
defendant marry the daughter or cousin of the juror,
or *465 the juror marry the daughter or cousin of
the plaintiff or defendant, and the same continues,
or issue be had. Co. Litt. 157.
It had been decided by this court that relationship,
either by consanguinity or affinity, to one of the
parties to a suit, within the ninth degree, is, by the
common law, a ground of principal challenge of a
juror. O'Connor v. State, 9 Fla. 215; Morrison v.
McKinnon, 12 Fla. 552. It was held in Ex parte
Harris, 26 Fla. 77, 7 South. 1, 6 L. R. A. 713, that
affinity is the tie between a husband and the blood
relatives of the wife, and between a wife and the
blood relatives of the husband; but it does not exist
between the blood relatives of either party to the
marriage and those of the other, and consequently
no affinity existed between a brother of a wife and
the brother of her husband, so as to disqualify the
husband's brother from presiding in a trial where
the wife's brother was charged with crime. The
principle stated that no affinity exists between the
respective blood relatives of the parties to the marriage is unquestionably true, and was decisive of
the case; and it is also true, as a general rule, that
affinity only exists between a husband and the consanguinei of his wife, and, vice versa, between a
wife and the consanguinei of her husband. The dictionaries generally define direct affinity to be the
relation brought about by marriage between a husband and the kindred of his wife and between a
wife and the kindred of her husband.
Under the rule stated, Judge Wall is related by affinity to Solon B. Turman's wife within the ninth
degree, whether we reckon according to the canonical rule or by the civil law, she being the niece of
the full blood of the judge's wife, and he could not,
of course, preside in a case where she was an inter-

Page 2

ested party. But how stands *466 it when the

niece's husband is a party? It was decided in Kelly
v. Neely, 12 Ark. 657, that in such a case the judge
was disqualified. In Tennessee it was held that a
judge was not disqualified by affinity to sit in a
case where his wife's sister's husband was an interested party. Judge Cooper, in speaking for the court
(Hume v. Bank, 10 Lea, 1), says that: Affinity, as
distinguished from consanguinity, signifies the relation which each party to a marriage, the husband
and the wife, bears to the kindred or blood relations
of the other. The marriage having made them one
person, the blood relations of each are held as related by affinity in the same degree to the one
spouse as by consanguinity to the other; but the
relationship by affinity does not extend further, and
hence the maxim Affinis mei affinis non est mihi
affinis,-a person related by affinity to one who is
related to me by affinity is not related to me by affinity.' The rule stated is all right, but its application
to the facts of the case causes us trouble. A judge
undoubtedly is related by affinity to his wife's sister, her blood relative; but the sister's husband is
not so related under the rule, according to this decision, because he is the affinis of his wife. We do
not think it can be maintained that a husband is related to his wife by affinity. They are embraced in
the definition of neither affinity nor consanguinity,
but are regarded in law, as correctly stated by Judge
Cooper, as one person. If we undertake to apply the
rule of affinity to the relation of husband and wife,
we cannot exclude the husband from sitting in a
case where his wife has the right to sue alone, and
is an interested party, as they are not related to each
other by affinity or consanguinity; and no one
would ever suppose that this was permissible. We
admit that a decided*467 majority of the American
courts, as shown by cases cited, in applying the rule
of affinity, have announced conclusions that would
not disqualify a judge to sit in a case where the husband of his wife's niece was an interested party (
Higbe v. Leonard, 1 Denio, 186; Eggleston v. Smiley, 17 Johns. 133; Rector v. Drury, 4 Chand.
[Wis.] 24; Chinn v. State, 47 Ohio St. 575, 26 N. E.
986, 11 L. R. A. 630; Kirby v. State, 89 Ala. 63, 8

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Page 4 of 4

26 So. 1020
49 L.R.A. 548, 41 Fla. 463, 26 So. 1020, 79 Am.St.Rep. 195
(Cite as: 49 L.R.A. 548, 41 Fla. 463, 26 So. 1020)
South. 110; Deupree v. Deupree, 45 Ga. 415; Oneal
v. State, 47 Ga. 229; Johnson v. Richardson, 52
Tex. 481; Moses v. State, 11 Humph. 232; Bigelow
v. Sprague, 140 Mass. 425, 5 N. E. 144; Rank v.
Shewey, 4 Watts, 218; Chase v. Jennings, 38 Me.
44; Tegarden v. Phillips, 14 Ind. App. 27, 42 N. E.
549), but they proceed upon the theory, it seems to
us, that the relation of husband and wife is one of
affinity, and the rule as to such relation is applied.
We are of opinion that they should be regarded
**1022 as one person in law, so far as the question
under consideration is concerned, and this will disqualify a judge where any blood relative of his
wife, within the ninth degree, or the husband or
wife of such relative, is an interested party. Principal challenges or to the favor of jurors proceeded
upon the ground that they were biased in favor of
one of the parties, and thereby rendered unfit to determine the truth of the matter to be submitted to
them. When they were interested in the matter to be
tried, or were of kin to either party in the ninth degree, there was such a manifest presumption, in
law, of partiality, as to set them aside as for a principal cause of challenge; and when the challenge
was to the favor it was determined by triors. Out
statute disqualifies a judge when he would be excluded from being a juror by reason of interest,
consanguinity, or affinity to either of the parties;
*468 and whatever interest, consanguinity, or affinity that would, in law, exclude a juror as for principal cause of challenge, will disqualify the judge.
The statement of the rule by Chitty in his book on
Criminal Law (volume 1, pp. 541, 542) is as follows: The third description of challenges are those
which arise propter affectum, or on the ground of
some presumed or actual partiality in the juryman
who is made the subject of objection; for the writ,
requiring that the jury should be free from all exception, and have no affinity to either party, Must
evidently include both these grounds of challenge.
If, have no affinity to either party, must evidently
within the ninth degree, though it is only by marriage, a principal challenge will be admitted. In
Mounson v. West, 1 Leon. 88, it is stated that it had
been held a principal challenge where the sheriff's

Page 3

wife was sister to plaintiff's wife, and where the

brother of the defendant's wife had married the
daughter of the sheriff; and it was decided by Chancellor Walworth ( Paddock v. Wells, 2 Barb. Ch.
331) that: Relationship by affinity may exist
between the husband and one who is connected by
marriage with a blood relative of the wife. Thus,
where two men marry sisters, they become related
to each other in the second degree of affinity, as
their wives are related in the second degree of consanguinity. See, also, note to Cain v. Ingham, 7
Cow. 478, Marshall v. Eure, 1 Dyer, 37b, and Railroad Co. v. Schuyler, 28 How. Prac. 187.
Our judgment is that, whenever a judge will be disqualified to sit in a case because a blood relative of
his wife is a party, he will likewise be excluded
when the husband or wife or such relative is a
party, as they should be regarded as one person in
interest and in law, so far as the matter in litigation
is involved. The result is that *469 the peremptory
writ of mandamus will be denied, and it will be so
ordered. As the writ must be denied on the ground
stated, we do not consider the propriety of the remedy resorted to in this case. See State v. Call
(decided at this term) 26 South. 1016. Order to be
entered denying peremptory writ.
Fla. 1899
State v. Wall
49 L.R.A. 548, 41 Fla. 463, 26 So. 1020, 79
Am.St.Rep. 195
END OF DOCUMENT

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